In Frishman v. 1211 McDonald, LLC, et al. (Kings County, Index No. 28068/11), Judge Richard Velasquez ultimately granted summary judgment in favor of our client. Plaintiff claims she tripped and fell as a result of a cracked sidewalk in front of our client’s store and sued the building owner and our client.

We previously moved for summary judgment on the grounds that our client, the ground floor commercial tenant, could not be held liable because:

(1) The "sidewalk law,"Administrative Code § 7-210, was inapplicable since our client was the tenant, not the owner.

(2) There was no common law cause of action since our client did not create the condition; negligently repair the sidewalk; or derive a special use from the sidewalk.

(3) The lease provision making our client responsible for sidewalk repairs did not create a duty to the plaintiff, as per Espinal v. Melville Snow Contrs.

(4) The leasehold contractual indemnity provision was unenforceable as it violated G.O.L. § 5-321's prohibition against a tenant indemnifying a landlord for the landlord’s negligence and this case did not fall under the Great Northern exception to G.O.L. § 5-321 since the parties to the lease were not sophisticated individuals who, through an arms-length transaction, agreed to provide contractual indemnity and allocated the risk through the use of insurance.

(5) Our client did not breach its duty to procure insurance in favor of the landlord.

The court previously denied the motion, finding that there was an "issue of fact whether the tenant’s lease required maintenance of sidewalk." Therefore, we moved to reargue and explained that the plain wording of the lease states that the tenant was obligated to "take good care [of the premises and sidewalk and] make all non-structural repairs [emphasis added] thereto as and when needed to preserve them in good working order and condition..." Thus, the tenant’s duties as to the sidewalk were limited to routine cleaning and not the physical repair of the sidewalk flags, as supported by the relevant case law. After hearing argument, Justice Velasquez reversed the previous decision and issued an order granting summary judgment and dismissal of all claims against our client.